The Association of British Commuters has built a legal case against the UK Government in attempt to resolve the plight of frustrated Southern Rail commuters, writes 39 Essex Chambers barrister Kelly Stricklin-Coutinho.
The repeated strikes affecting Southern Rail of the past few months have generated more than one attempt to use litigation to resolve the perceived deadlock between the unions and the government. The most recent attempt is an innovative challenge which is brought by the Association of British Commuters (“ABC”). The case concerns whether the Government’s approach to the alleged poor standard of service provided has allowed Govia Thameslink Railway (“GTR”) to be in breach of its franchise agreement, without any apparent consequence. It also considers whether disabled passengers are particularly affected by this issue.
The case against the UK Government
ABC’s case centres around two main grounds. Each is significant in its own way. If successful, the first may affect Government procurement and management of contracts. The second will be of significance for those campaigning for disabled rights.
The first ground concerns whether GTR is in default of its franchise agreement with the Department for Transport (“DfT”), and specifically, whether the DfT’s behaviour in relation to that alleged default is lawful. Broadly speaking, the argument is that the DfT has not properly held GTR to account for poor performance. ABC claims that GTR is on ongoing breach of its Cancellation and Peak Short Form Performance benchmarks, and that the DfT has failed to respond properly to those breaches.
The second main ground (which is actually split into three related grounds), is the allegation that the Secretary of State has failed to comply with his duties under the Equality Act 2010 and his public sector equality duty (“PSED”). It is alleged that this has resulted in indirect discrimination to passengers with disabilities, because the DfT’s failure in its duty to hold GTR to its franchise obligations has led to extreme overcrowding. Such overcrowding is considered to be particularly problematic for disabled passengers, who are less able to travel when they might wish to. The Secretary of State for Transport has apparently denied that he is subject to any duty under the Equality Act 2010.
In order to proceed, the claim must only be considered to be arguable by the court, which seems likely to be the case here.
What happens if ABC is successful?
ABC is seeking a declaration that the Secretary of State has acted or is acting unlawfully. Such a declaration may well cut across any deal between ASLEF and Southern Railways. On 16 February 2017 ASLEF drivers voted to reject a proposed deal and negotiations are ongoing. Any final decision on the judicial review application is likely to postdate a potential deal agreed between ASLEF and Southern Railways.
Any guidance which emerges in any judgment in favour of ABC will, of course, be relevant to future Government procurement processes and to the future management of procured services. That will certainly be the case for public transport services, but there is the potential for this issue to apply more broadly to other government procured services too.
If ABC wins, this ground may also set an important precedent for campaigners for the rights of disabled people and the standards of service provision to be met, in particular in holding public service providers to account.
One of the issues which the Court may have to consider is accessibility for disabled passengers. One of the proposals is that where previously 33 stations provide guaranteed access on a “turn up and go” basis, this will be changed to require 24 hour advance booking at all stations. Removal of this service appears to remove the possibility of spontaneous travel for disabled passengers.
The application for judicial review must also be looked at in its wider context.
There are currently proposals, due to come into force on 1st March 2017, which will make it much harder for unions to hold a strike. At present, there is no minimum participation requirement for ballots. The subject of much debate in recent years, a successful ballot only requires that action is supported by simple majority of the votes cast. This will change on 1st March 2017 with the coming into force of the Trade Union Act 2016. Ballots opened from this date will be subject to a 50% participation requirement (i.e. that at least 50% of those eligible to vote must do so), and, if the majority of workers eligible to vote are providing important public services, at least 40% must vote in favour of strike action. Transport is one of the services listed as an important public service.
This change may result in it being slightly harder for unions to strike.